Roundup: 2nd, 4th, 5th and 6th Circuits

Company can pursue claims against cybertheft committed in Canada; Employer doesn't have to grant burdensome religious request; No duty to conduct background checks in Mississippi, even if it is company policy; University diversity policies trump freedom of speech

On Dec. 26, 2012, the 2nd Circuit breathed life into an employer’s case against a former employee who allegedly committed cybertheft from outside the U.S.

A district court in Connecticut dismissed the case MacDermid Inc. brought against former manager Jackie Deiter for stealing trade secrets because she allegedly stole them from her home in Ontario, Canada, and therefore the court had no jurisdiction.

The 2nd Circuit reversed this decision in MacDermid Inc. v. Deiter, saying that because the server Deiter allegedly stole from was located in Connecticut, it didn’t matter that she accessed it from outside the state. MacDermid can pursue its civil damages claims against Deiter, potentially making it easier for other employers to punish cybertheft committed outside the U.S.

4th Circuit Maryland, North Carolina, South Carolina, Virginia, West Virginia

Employer doesn’t have to grant burdensome religious request

Employers are expected to make reasonable accommodations for their workers, but a recent 4th Circuit decision reminds companies that they do not have to accommodate requests that give them undue hardship.

In EEOC v. Thompson Cont- racting, Grading, Paving, and Utilities Inc., dump truck driver Banayah Yisrael objected to working on Saturdays, which, as part of the Hebrew Israelite faith, were his Sabbath. Thompson required employees to work Monday through Friday, but sometimes expected them to come in on Saturdays to make up for time lost. The Equal Employment Opportunity Commission sued Thompson for firing Yisrael after he repeatedly refused to work Saturdays.

On Dec. 14, 2012, the 4th Circuit upheld a district court’s ruling of summary judgment in favor of Thompson, saying Yisrael’s absence would have forced the company to use contractors or substitute drivers, or not to have Yisrael’s work done, all of which the court found would be an undue burden.

5th Circuit Louisiana, Mississippi, Texas

No duty to conduct background checks in Mississippi, even if it is company policy

On Dec. 10, 2012, in Keen v. Miller Environmental Group Inc. et al., the 5th Circuit affirmed a district court’s granting of summary judgment to an employer that failed to do a criminal background check on a man with a history of sexual violence before hiring him.

Rundy Robertson applied to Aerotek to be a technician at a cleanup site in Mississippi after the 2010 oil spill in the Gulf of Mexico. Aerotek was in charge of staffing for the Miller Environmental Group and did not conduct a background check on Robertson, though it was purportedly its policy to do so. In his application, Robertson claimed to have no criminal history, but it turned out he had a lengthy rap sheet, including a charge for forcible rape.

The plaintiff was also a technician at the site and claims that Robertson forcibly raped her after driving her home from work one day. She filed suit against Miller and Aerotek for negligent hiring, among other things.

In a decision of first impression, the 5th Circuit found that Mississippi law does not require companies to conduct criminal background checks for “simple work,” such as removing tar from the coast, that is unlikely to “subject third persons to serious risk of great harm.”

6th Circuit Kentucky, Michigan, Ohio, Tennessee

University diversity policies trump freedom of speech

Freedom of speech does not apply when an employee is publicly denouncing a government employer’s policies that she is taxed with upholding, according to the 6th Circuit’s Dec. 17, 2012, decision in Dixon v. University of Toledo.

Crystal Dixon, the University of Toledo’s associate vice president for human resources, wrote an op-ed saying that gay rights activists were wrong to compare their struggle to the civil rights movement because they are “choosing the homosexual lifestyle.” She was fired shortly thereafter because her opinion was “in direct contradiction to University policies,” according to the termination letter.

The 6th Circuit affirmed the district court’s dismissal of Dixon’s wrongful termination lawsuit, ruling that Dixon’s open contradiction to the values held by the university’s diversity policies (including an equal hiring policy), when she was in charge of hiring, was enough to warrant her termination.